Do Human Rights Treaties Protect Rights?

Human Rights Law ◽

Human Rights Treaties ◽

International Human ◽

Common belief is that international human rights treaties have little to no influence on human rights practices. Yet decisions to comply with rights obligations are directly tied to conflicts with civilians over policies; compliance with international human rights law is a function of contention. To know whether and when human rights treaties will effectively constrain government repression, we must understand the context of dissent faced by the government. Most scholars studying human rights treaties focus on the extent to which authorities have the opportunity to repress. Yet, as with any potential legal violation, opportunity without the motive to misbehave yields no crime. Popular challenges and the threat they represent to a government's hold on policies and power constitute the state's primary motive to repress. To determine whether international human rights treaties can meaningfully influence a government's human rights behaviors, we first consider the incentives that motivate leaders to repress.

Domestic Human Rights Adjudication in the Shadow of International Law: The Status of Human Rights Conventions in Israel

Israel Law Review ◽

10.1017/s0021223717000164 ◽

2017 ◽

Vol 50 (3) ◽

pp. 331-388 ◽

Cited By ~ 1

Author(s):

Barak Medina

Keyword(s):

Human Rights ◽

International Law ◽

Democratic Legitimacy ◽

Human Rights Law ◽

Quarter Century ◽

Human Rights Treaties ◽

International Human ◽

The quarter-century anniversary of Israel's ratification of the major United Nations (UN) human rights treaties is an opportunity to revisit the formal and informal interaction between domestic and international Bills of Rights in Israel. This study reveals that the human rights conventions lack almost entirely a formal domestic legal status. The study identifies a minor shift in the scope of the Israeli Supreme Court's reference to international law, as the Court now cites international human rights law to justify decisions that a state action is unlawful, and not only to support findings that an action is valid. This shift may be the result of other reasons, for instance, a ‘radiation’ of the Court's relatively extensive use of international humanitarian law in reviewing state actions taken in the Occupied Territories. However, it may also reflect a perception of enhanced legitimacy of referring to international human rights law as a point of reference in human rights adjudication following ratification of the treaties.At the same time, the Court continues to avoid acknowledging incompatibility between domestic law and international law. It refers to the latter only to support its interpretation of Israeli constitutional law, as it did before the ratification. This article critically evaluates this practice. While international human rights law should not be binding at the domestic level, because of its lack of sufficient democratic legitimacy in Israel, it should serve as an essential benchmark. The Court may legitimise a human rights infringement that is unjustified according to international law, but such incompatibility requires an explicit justification. The Court, together with the legislature and the government, are required to engage critically with the non-binding norms set by the ratified UN human rights treaties.

International Human Rights Law

The Occupation of Justice ◽

10.1093/oso/9780190696023.003.0005 ◽

2021 ◽

pp. 83-98

Author(s):

David Kretzmer ◽

Yaël Ronen

Keyword(s):

Human Rights ◽

Human Rights Law ◽

Occupied Territory ◽

Human Rights Treaties ◽

Occupied Territories ◽

International Human ◽

The Government ◽

The Relationship

The generally accepted position today is that international human rights treaties to which an occupying state is a party apply to that state’s actions in occupied territory. The Government of Israel rejects this position. This chapter examines the Court’s view on the issue. The Court often refers to provisions in human rights treaties in its decisions relating to Israel’s actions in the Occupied Territories, but it has never taken a firm position on the treaties’ formal applicability. The Court’s position on the relationship between international human rights law and other applicable bodies of law is also ambiguous. Thus the Court has left the applicable legal regime indeterminate.

The Idea of International Human Rights Law

10.1093/oso/9780198749844.001.0001 ◽

2019 ◽

Author(s):

Steven Wheatley

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Fragmentation Of International Law

Moral Concept ◽

Customary International Law ◽

Human Rights Treaties ◽

International Human ◽

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.

The Fallacy of Effective Human Rights Protection under Relevant Treaty Law when Armed Groups Commit Violations

10.1093/oso/9780198821946.003.0007 ◽

2018 ◽

Author(s):

Tilman Rodenhäuser

Keyword(s):

Human Rights ◽

Human Rights Violations ◽

Human Rights Law ◽

Armed Groups ◽

Human Rights Protection ◽

Rights Protection ◽

Human Rights Treaties ◽

International Human

Chapter 5 adds to the contemporary discourse on human rights obligations of non-state armed groups by showing that in many situations, there is a clear legal need for these obligations. This chapter first engages in the debate on whether and to what extent certain human rights treaties address armed groups directly. Second, it shows that under the law of state responsibility, states are generally not responsible for human rights violations committed by non-state entities. Third, it recalls that under international human rights law, states have an obligation to protect human rights against violations committed by armed groups. However, it argues that because this cannot be a strict obligation but is one that depends on states’ capacities and the particular circumstances, often this framework cannot adequately protect individuals against human rights violations by armed groups. The result is a legal and practical need for human rights obligations of non-state armed groups.

Disability in International Human Rights Law

10.1093/oso/9780198824503.001.0001 ◽

2021 ◽

Author(s):

Gauthier de Beco

Keyword(s):

Human Rights ◽

Theoretical Framework ◽

Social Model ◽

Human Rights Law ◽

Legal Subject ◽

Human Rights Treaties ◽

International Human ◽

International Instruments

This book examines what international human rights law has gained from the new elements in the UN Convention on the Rights of Persons (CRPD). It explores how the CRPD is intricately bound up with other international instruments by studying the relationship between the Convention rights and those protected by other human rights treaties as well as the overall objectives of the UN. Using a social model lens on disability, the book shows how the Convention sheds new light on the very notion of human rights. In order to so, the book provides a theoretical framework which explicitly integrates disability into international human rights law. It explains how the CRPD challenges the legal subject by drawing attention to distinct forms of embodiment, before introducing the idea of the ‘dis-abled subject’ stemming from a recognition that all individuals encounter disability-related issues in the course of their lives. The book also examines how to apply this theoretical framework to a number of rights and highlights the consequences for the implementation of human rights treaties as a whole. It not only builds upon available literature straddling different fields, which include disability studies and legal and political theory, but also draws upon the recommendations of treaty bodies and reports of UN agencies as well as disabled people’s organisations. The book provides an agenda-setting analysis for all human rights experts by inviting them to appreciate the benefits of placing disabled people at the heart of international human rights law.

International Human Rights Law and the Response to the covid-19 Pandemic

Journal of International Humanitarian Legal Studies ◽

10.1163/18781527-bja10004 ◽

2020 ◽

Vol 11 (2) ◽

pp. 249-269

Author(s):

Sarah Joseph

Keyword(s):

Human Rights ◽

Political Rights ◽

Human Rights Law ◽

Cultural Rights ◽

Human Rights Treaties ◽

International Human ◽

Civil And Political Rights ◽

Do So

Abstract States have duties under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights and Article 6 of the International Covenant on Civil and Political Rights to prevent, control and treat covid-19. Implementation of these three obligations is analysed, taking account of countervailing human rights considerations. Regarding prevention, lockdowns designed to stop the spread of the virus are examined. Control measures are then discussed, namely transparency measures, quarantine, testing and tracing. The human rights compatibility of treatment measures, namely the provision of adequate medical and hospital care (or the failure to do so), are then examined. Finally, derogations from human rights treaties in times of pubic emergency are discussed.

Theory and Evidence Regarding the Effectiveness of Human Rights Treaties

Oxford Research Encyclopedia of Politics ◽

10.1093/acrefore/9780190228637.013.544 ◽

2017 ◽

Author(s):

Daniel W. Hill, Jr.

Keyword(s):

Human Rights ◽

International Law ◽

Good Evidence ◽

Human Rights Law ◽

International Treaties ◽

Human Rights Treaties ◽

Sources Of Variation ◽

International Human

The adoption by the United Nations of the Universal Declaration of Human Rights in 1948 marked the beginning of the modern international human rights regime. Since then the number of international treaties that protect human rights, as well as the number of internationally recognized rights, has greatly increased. The increasing number and scope of international treaties attests to the fact that advocates for human rights view treaties, which are legally binding in principle, as useful tools for promoting respect for the various rights identified in international law. Only recently have scholars begun to collect and systematically examine evidence concerning the effectiveness of human rights treaties. This new body of research is motivated by a question that has obvious normative import and policy relevance: do we have good evidence that the widespread adoption of international human rights law has had any meaningful impact on the level of respect that states exhibit for the rights articulated in international law? To date, this literature suggests three sources of variation in the effectiveness of human rights treaties: (1) variation in the domestic political and legal institutions that facilitate enforcement and compliance, (2) variation in the nature of the rights protected by different treaties and the nature of violations, and (3) variation in the strength of governments’ commitments to the UN treaty regime. All three sources of variation point to opportunities to advance our understanding of the conditions under which international human rights law can achieve its goals.

Good Governance and Property Rights of the State: The Dubovets Case before the European Court of Human Rights and the Russian Constitutional Court

Review of Central and East European Law ◽

10.1163/15730352-04403002 ◽

2019 ◽

Vol 44 (3) ◽

pp. 296-304

Author(s):

Grigory Vaypan

Keyword(s):

Human Rights ◽

Property Rights ◽

Good Governance ◽

Constitutional Court ◽

Human Rights Law ◽

European Court ◽

International Human ◽

This contribution discusses the recent Dubovets case before both the European Court of Human Rights and the Russian Constitutional Court, and its implications for the changing design of Russian property law as increasingly shaped by international human rights law and good governance principles. Communicated in December 2016, the application in Dubovets v. Russia continues the line of the European Court’s cases against Russia on the protection of good faith private owners of real estate against property claims by the government. Prompted by this case law, the Russian Constitutional Court in its Judgment of 22 June 2017 No 16-P struck down Article 302 of the Russian Civil Code as unconstitutional insofar as it entitled the government to reclaim possession of state property that had been previously alienated due to the government’s own negligence. This judgment manifests the increasing interdependence between private and public law – of classical property law, on the one hand, and international human rights law and good governance principles, on the other hand. It also contributes to ongoing evolution in the understanding of the state’s property rights in Russia: from the superior status of public property in Soviet times – to formal equality between public and private property rights in the landmark legal instruments of the 1990s – and now to the growing need for special protection of individual property rights vis-à-vis the state, in light of the latter’s double role as both the largest owner and the (quite unrestrained) regulator.

Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of CEDAW

The American Journal of International Law ◽

10.5305/amerjintelaw.109.3.0534 ◽

2015 ◽

Vol 109 (3) ◽

pp. 534-550 ◽

Cited By ~ 6

Author(s):

Christopher McCrudden

Keyword(s):

Human Rights ◽

International Law ◽

National Court ◽

Human Rights Law ◽

Human Rights Treaties ◽

Similarities And Differences ◽

International Human ◽

Domestic Level

Comparative international law promises to bring fresh attention to the similarities and differences in how international law is understood and approached at the domestic level. Comparative international human rights law applies this focus to similarities and differences in the ways that international human rights law is, for example, interpreted at the domestic level by courts.

‘Past’ Violations under International Human Rights Law: The Indigenous ‘Stolen Generation’ in Australia

Netherlands Quarterly of Human Rights ◽

10.1177/016934410502300204 ◽

2005 ◽

Vol 23 (2) ◽

pp. 243-272

Author(s):

Maria O'Sullivan

Keyword(s):

Human Rights ◽

Racial Discrimination ◽

Political Rights ◽

Human Rights Law ◽

International Convention ◽

Rights Of The Child ◽

International Human ◽

This article examines the debate relating to reparations for ‘past’ human rights violations, with particular focus on the case of the indigenous ‘Stolen Generation’ in Australia. The ‘Stolen Generation’ is a term used to describe the government-sanctioned practice of forced removals of part-Aboriginal children from their indigenous parents and placement into non-indigenous institutions and homes, which occurred in Australia from approximately 1910–1970. The ‘Stolen Generation’ violations present a unique and difficult legal question for international human rights law because they straddle the divide between ‘historic’ violations and contemporary acts, that is, they were committed by Australia after Australia signed key agreements such as the UN Charter, the Universal Declaration on Human Rights, the Declaration on the Rights of the Child and the Declaration on the Elimination of All Forms of Racial Discrimination, but prior to its ratification of international human rights treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. This means that bringing a claim under international human rights law in relation to the violations raises a number of problems. The object of this article will be to explore whether Australia can be held responsible under international human rights law for the ‘Stolen Generation’ violations and possible avenues of redress. In this regard, the focus of the article will be on the possible claims victims could make to relevant treaty monitoring bodies and the types of obstacles they would face in doing so. These legal questions are also relevant to the wider debate that is taking place in relation to reparations, namely the extent to which a State can be held legally responsible to provide reparations for past violations.